De Soto Creamery and Produce Co.

National Labor Relations Board - Board Decisions

Jun 27, 1951

94 N.L.R.B. 1627 (N.L.R.B. 1951)

DE SOTO CREAMERY AND PRODUCE COMPANY 1627
are not engaged in repetitive, routine, or prescheduled work, but are
required to use a specialized knowledge and,training peculiar to their
craft.', Accordingly, although the pattern shop employees perform
a portion of their duties in conjunction with other employees, or in
portions of the plant other than the pattern shop, it does not follow,
as the Employer contends, that they are either so closely associated
with other employees, or so inextricably connected with the produc-
tion process as to make their separate representation impracticable.7
The fact that the Board has in the past found that a production
and maintenance unit at the Employer's plant was appropriate 8 does
not alter our conclusion herein.
On the basis of the foregoing, we find that all wood and metal
patternmakers, patternmaker apprentices, and pattern checkers, at
the Employer's West Homestead, Pennsylvania, plant, excluding
pattern storage employees, guards, professional employees, and su-
pervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9-
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 Oregon Portland Cement Company , 92 NLRB 695; Texas Foundries , Inc., 83 NLRB 670.
'Pratt & Letchworth Co., Inc., 89 NLRB 124.
8 Mesta Machine Company, 55 NLRB 59. The union failed to win the election directed
therein.
DE SOTO CREAMERY AND PRODUCE COMPANY, OWNED AND OPERATED
BY ARMOUR AND COMPANY ,' and UNITED PACKINGHOUSE WORKERS OF
AMERICA, CIO , PETITIONER . Case No. 18-RC-946. June 27, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Clarence A. Meter, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
I The name of the Employer appears as amended at the hearing.
94 NLRB No. 229.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer and the Intervenor 2 executed a contract on Feb-
ruary 7, 1946, which was effective from January 29, 1946, to January
29, 1947, and automatically renewable for yearly periods thereafter
in the absence of a modification or termination notice given 30 days
prior to any anniversary date. Pursuant to its automatic renewal
provision, the contract was automatically renewed in 1948 3 and 1949.
On December 4, 1950, the parties executed a new contract pursuant
to a 60-day notice, which was to be effective from December 28, 1950,
to December 29, 1952, and automatically renewable for yearly periods
thereafter in 'the absence of a 60-day modification or termination
notice.
The Petitioner originally filed a petition on September 6, 1950,
but withdrew this petition on October 23, 1950, upon the advice of
the Regional Director that it was untimely filed 4 The instant peti-
tion was filed on December 6, 1950.
The Petitioner contends that the petition was timely filed because
it was filed before the 30-day automatic renewal, or "Mill B," 5 date
of the prior contract between the Employer and the Intervenor, and
that the new contract between these parties, although executed before
the filing of the petition, cannot serve as a bar to the petition because
it was a "premature extension" of the prior contract. The Petitioner
also asserts that its original petition, although withdrawn, put the
Employer on notice of a rival claim of interest, which precluded the
Employer from thereafter executing a new contract. .
The Employer contends that the requirement of Section 8 (d)
of the Act, as amended, that parties to a contract give a 60-day notice,
prior to expiration of a contract, of a proposed modification or ter-
lnination of a contract, superseded the 30-day notice requirement of
the parties' contract here; that the parties were complying with this
requirement of the Act in negotiating and executing their new con-
tract when they did; and that the new contract is therefore not a
premature extension of the old contract, and is a bar to the petition.
The position taken by the Petitioner on this issue is that where there
is a variance between the renegotiation periods of Section 8 (d) and a
contract, the contract period governs for purposes of contract bar.
Under the original Act, the Board established the rule that where,
as here, a new contract is executed during the term of, and before the
automatic renewal date of, a prior contract, it is a "premature ex-
2 Amalgamated Meat Cutters and Butcher Workmen of North America , Local Union
No. 615, AFL.
3 A supplemental agreement was executed on June 27 , 1946, extending the initial term of
the contract from January 29, 1947 , to January 29, 1948.
* Case No. 18-RC-870 . The record indicates that the Regional Director notified the
Employer on September 7, 1950, that this petition had been filed , and that he also notified
the Employer on OctoLer 28, 1950, of the withdrawal of the petition.
5 Mill B, Inc ., 40 NLRB 346.
DE SOTO CREAMERY AND PRODUCE COMPANY 1629
tension" of the prior contract, and therefore no bar to a petition
which is filed before the automatic renewal date of the prior con-
tract.e The Board also established the general rule, under the original
Act, that the effective and not the execution date of a contract controls
contract bar questions, and accordingly held that a petition is timely
where, as here, it is filed prior to the effective date, although subse-
quent to the execution date, of a contract.7
We are. convinced, however, because of the Section 8 (d) amend-
ment to the Act, that these precedents should no longer be followed in
situations of this particular character. Thus, as pointed out by the
Employer, Section 8 (d) (1) requires a party to. a contract, as a part
of its duty to bargain, to give a 60-day notice, prior to expiration of
the contract, of any proposed termination or modification of the con-
tract. In addition, Section 8 (d) (2) and (3) requires such a party to
a contract to offer to meet and confer with the other party to negotiate
a new or modified contract, and if no agreement is reached with 30
days after the 60-day termination or modification notice is given;
to notify appropriate mediation agencies that a dispute exists. Fi-.
nally, Section 8 (d) (4) requires such a party to a contract to continue,
without resorting to strike or lockout, the terms and conditions of
the existing contract for the 60-day period of the termination or modi-
fication notice, or until the expiration date of the contract, whichever
occurs later.
In the Northwestern Publishing case,8 the Board held that a new
contract executed between the automatic renewal and expiration dates
of a prior contract cannot be regarded as a "premature extension" of
the prior contract, because the new contract was executed" . . . with-
in the usual period for contracting parties to negotiate and conclude
new agreements . . . ," and that the new contract was therefore a bar
to a petition filed after its execution. Similarly, in the Mississippi
Lime case," the Board said that " . . . it was natural . . . to nego-
tiate and conclude a new agreement in. the period between the Mill B
and anniversary dates of [a prior] contract ...," and held therefore
that a new agreement executed during this period was a bar to a
U Wichita Union Stockyards Company, 40 NLRB 369; Republic Steel Corporation,
84 NLRB 483. Cf. Northwestern Publishing Company, 71 NLRB 167, where a new
contract executed between the "Mill B" and expiration dates of a prior contract. was held
a bar to a petition filed after the "Mill B" date of the prior contract as well as after
.the execution of the new contract.
4 See e . g. the cases cited in- Mississippi Lime Company of Missouri, 71 NLRB 472. Cf.
the exception to this general rule in that case, that a new Contract executed between
the "Mill B" and expiration dates of an old contract , and also made effective as of the
expiration date of the prior contract, is a bar to a petition ' filed between the execution
-and effective dates of. the new contract, but not filed until after the "Mill B" date of°
the prior contract.
s Supra.
Supra.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition, despite the fact that the petition was filed prior to the effective
date of the new agreement.
In our opinion, the provisions of Section 8 (d) of the Act require
the application of the rationale of these cases to the instant situation.
Section 8 (d) now establishes a 60-day period prior to the expiration
date of an existing contract as the "usual and natural" period for
parties to negotiate and execute a new agreement governing their
relations for a coming term. It is true that under the proviso to
Section 8 (d), an employer and a union in this situation are not under
an absolute duty to negotiate and execute a new contract 60 rather
than 30 days in advance of the expiration of their prior contract,
lest they commit an unfair labor practice 10 However, the proviso, so
far as appears, leaves unaffected their duty, under Section 8 (d) (1)
and (3), to give a 60-day notice of their proposed termination and
modification of their prior contract, and to give a notice 30 days later
to mediation agencies of the existence of a dispute i f they fail to agree
on a new contract by then. In the light of these requirements, the
parties here took the only reasonable steps they could. They gave, as
they were required to, a 60-day notice of their proposed termination
and modification of their prior contract. And having fulfilled their
obligations under the law in this respect, they then proceeded, as could
only reasonably be expected, to negotiate and enter into a new contract
in the period immediately following the notice, rather than postpone
such action for 30 days in accordance with the reopening provision
of their prior contract. This second step was not only the usual and
desirable one taken by employers and unions in order to maintain
uninterrupted stability of labor relations, but was also in keeping with
the clear import of Section 8 (d) (3). That section was patently de-
signed, despite the proviso to Section 8 (d), to have parties negotiate
and execute new contracts between the 60th and 30th day prior to
expiration of existing contracts. Thus, although not obligated to do
so, the parties here did no more than comply with what Congress con-
sidered a salutary procedure in this connection. Under such circum-
stances, we do not believe that contracting parties should be penalized
for doing so by a holding that their contract which resulted from such
compliance does not bar a subsequent petition.,,, We are of the
11 This proviso states that the duties under Section 8 ( d) (2), (3), and ( 4) ". . . shall
not be construed as requiring either party to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed period , if such modification is
to become effective before such terms and conditions can be reopened under the provisions
of the contract ." [ Emphasis supplied.]
11 It is true , as pointed out by our concurring colleagues , that Section 8 (d), was aimed
primarily at preventing "quickie strikes ." What they apparently fail to appreciate,
however, is that Section 8 (d) obviously seeks to accomplish this purpose by providing
for a 60 -day period of collective bargaining at the end of a contract term so that the
contracting parties may have adequate time in which to negotiate a new contract that
would render a strike unnecessary . And if the parties follow this statutory plan for
DE SOTO CREAMERY AND PRODUCE COMPANY 1631
opinion, therefore, and we shall normally hold'in future cases, that a
new contract which, as here, is executed, pursuant to a 60-day notice
under Section 8 (d) (1), in the 60-day period prior to expiration of an
existing. contract, and which is also executed prior to the filing o l a
petition, will bar the petition, even though the petition is filed prior
to a 30-day automatic renewal date of the expiring contract, and prior
to the effective date of the new contract 12 We do not believe that such
a holding will prejudice rival unions seeking to file timely petitions,
for they, as well as incumbent contracting unions, must be presumed to
have knowledge of, and to act in accordance with, the provisions of
Section 8 (d), and therefore will simply be required to file their
petitions more than 60, rather than 30, days prior to the expiration of
a contract in this situation. 13
We are persuaded, however, that there are extenuating circum-
stances which are sufficient to preclude application of the principle
enunciated above in the instant case. Thus, the Petitioner here did
file an earlier, and what would have been a timely, petition under the
new contract bar doctrine here enunciated,14 and withdrew it on the
preventing "quickie strikes," we believe that the Board's contract bar rules, because of
their necessary impact on the plan in this situation, should be adjusted to conform to the
plan, rather than be permitted to conflict with it.. The legislative history of Section 8 (d)
does not, as our concurring colleagues also point out, specifically say that the Board
should so adjust its contract bar rules, but neither does it say that the Board is precluded
from doing so. And, in our opinion, it is more reasonable to conclude that Congress
intended the integrated interpretation of the Act that our view represents, rather than
the disconnected interpretation of our concurring colleagues.
12 The Board has held that Section 8 (d) (1) does not serve automatically to renew
a contract 60 days prior to its expiration date where the contract, as here, has a 30-day
automatic renewal date, and accordingly that such a contract does not bar a petition
filed prior to the contract's automatic renewal date. International Harvester Company,
77 NLRB 242. In effect, however, this was a finding that Section 8 (d) does not affect
the terms of such a contract, for contract bar purposes, where the contracting parties
do not wish to change their contract, and therefore the provisions of Section 8 (d) are not
at all applicable. The distinguishable issue in the instant situation is the effect of
Section 8 (d) on the terms of such a contract, for contract bar purposes, where the parties
do wish to change their contract, and in doing so, comply with the applicable provisions
of Section 8 (d).
Our concurring colleagues seem, to envision some difficulty in applying this very explicit
rule to slightly different factual situations that may arise. There is no difficulty. In
the situation they pose of a 60-day notice under Section 8 (d) (1) given 75 days in
advance of the termination date of an existing contract, a new contract executed in the
15 days following such notice would still be subject to the Board's "premature extension"
and "effective date" rules, but a new contract executed any time thereafter in the 60-day
period prior to the termination date of the existing contract would receive the protection
of the rule here enunciated. Similarly, in the case of a 60-day notice under Section 8 (d),
(1) given 50 days prior to the termination date of an existing contract, a new bontract
executed any time in the following 50-day period would be given such protection, because
executed in the 60-day period prior to the termination date of the existing contract.
's And, as already indicated, such a filing would be timely not only in this precise
situation, but also in the situation where a 60-day notice under Section 8 (d) (1) is
given either 75, or 50, days prior to the termination date of an existing contract.
14 The Board has held that petitions, which are filed almost 3 months prior to the
automatic renewal date of a contract, are timely filed. Wells Manufacturing Corporation,
85 NLRB 23; General Instrument Corporation, 89 NLRB 1187; Stremel Bros. Manufactur-
ing Company, 89 NLRB 1404. Similarly, the original petition here would have been
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strength of the Regional Director's representation that it was filed too.
early. Under such circumstances, we feel that the Petitioner would
be unduly prejudiced by a finding under a new doctrine that its later
petition was filed too late, particularly since the later petition was filed
at a time which, as indicated above, would have been appropriate
under then existing precedents. Accordingly, although we shall, as
previously indicated, normally apply the doctrine here enunciated to
future cases of this particular character, we find, under all the circum-
stances here present, that the December 4, 1950, contract between the
Employer and the Intervenor should not serve as a bar to the peti-.
tion.15
4. The following employees of the Employer constitute a unit,
appropriate for the purposes of collective bargaining within the mean-..
ing of Section 9 (b) of the Act.
All production employees, including working supervisors,- chauf-
feur drivers, and janitors, but excluding all office and clerical em-
ployees and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER REYNOLDS, concurring :
We agree with the result reached in this case, but not for the reasons
given by the majority. Sound legal reasons, and not merely the equi-
table ones upon which our colleagues rely, dictate the direction of an
election here.
Heretofore, the Board has held that in determining the timeliness
of a rival union's representation claim in. the face of an existing
"prematurely extended" contract, it would look to the provisions for
renewal or termination in the superseded contract. If, as in this case,
the original contract contained a 30-day automatic renewal clause, a
rival union had until 30 days from the date of termination during
which to make a valid claim for representation.
Until now, this has been a firmly established Board rule. It has
worked well in practice, and labor unions have adjusted their organiz-
ing activities to conform to it. Our colleagues now propose to change
this rule without adequate appreciation, it seems to us, of the unset-
tling effects and the inequity which are likely to follow in the wake of
the change. In the field of labor relations, where certainty and clarity
timely although filed almost 3 months prior to the 60-day termination notice given by
the contracting parties pursuant to Section 8 (d) (1).
15 This is not to say , however, as apparently argued by the Petitioner , that the original
petition alone precluded the Employer, as a strict matter of law, from thereafter executing
a new contract.
16 There is no evidence that these employees are supervisors as defined in the Act, as
amended. Accordingly , we include them in the unit, as we did under the original Act.
(64 NLRB 1102.)
DE SOTO CREAMERY AND PRODUCE COMPANY 1633
are especially necessary, we should be slow to introduce changes which
are likely to be disruptive, unless statutory or policy reasons clearly
indicate their necessity. We can find no such compelling necessity
here. Our colleagues find justification for their position in Section
8 (d) of the amended Act, and in the rationale of the Northwestern
Publishing 17 and Mississippi Lime 18 cases. We do not think that
either this section of the Act or the cases support the broad reasoning
of our colleagues which announces that, absent the equitable factors
present here, they would dismiss such a petition as this one.
In 1948, early in the administration of the Labor Management Re
lations Act, the Board decided that Section 8 (d) did not incorporate
a statutory 60-day automatic renewal clause in collective bargaining
contracts." Our colleagues do not overrule this holding, but distin-
guish it by adopting an accordian-like concept of the "Mill B" date.
Thus, in our colleagues' view, if the contract contains a 30-day auto-
matic renewal clause, the contracting parties may convert it into a
60-day renewal clause for contract bar purposes, by giving appropriate
notice 60 days in advance of termination. If they do not give this
notice, then the contract renewal period remains unchanged. But
what happens if the parties give their "60-day notice" 50 days in ad-
vance of the contract's, termination date, or 75 days in advance of that
date? What is then the "Mill B" date?
We do not believe that Section 8 (d) requires the conclusion of our
colleagues. That ,section of the Act is not concerned with contract
bar rules. Its purpose; as is clear from its legislative history, is to pro-
vide a cooling-off period before a work stoppage.20 The Board, in
interpreting Section 8 (d), said : 21
. . . Section 8 (d) was designed to provide a cooling-off
period during which a labor organization is forbidden to strike
or enforce its demands to modify or terminate a contract. As
there was no strike in this case, Section 8 (d) is inapplicable.
The purpose of the Board's contract bar rule and that of Section 8
(d) thus differ. The former seeks to define the time appropriate for
making a valid claim of representation; the latter is to eliminate
"quickie strikes." To leave the Board's contract bar rules unchanged
does not in any way interfere with the objective of Section 8 (d).
17Northwestern Publishing Company, .( WDAN ), 71 NLRB 167.
18 Mississippi Lime Company of Missouri , 71 NLRB 472.
" International Harvester Company , 77 NLRB 242 ; Manhattan Coil Corporation, 79
NLRB 187.
20 Boeing Airplane Co. v. N. L. R. B., 174 F. 2d 988, 990 (C. A. D. C.) ; United States
Gypsum Company , 90 NLRB 964 ; United Packinghouse Workers of America, CIO (Wilson
& Co., Inc.), 89 NLRB 310 . See this last case particularly, for an extended analysis of
the legislative history of Section 8 (d).
21 United States Gypsum Company , supra.
953841-52-vol . 94-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, that section itself contemplates that its obligations are sub-
ject to defeasance by the operation of the Board's ordinary representa-
tion procedure.22 Congress was well aware of the Board's preexisting
rules for determining the timeliness of a rival claim to representation.
Nowhere in the 1947 legislative history is there any suggestion that
these rules were to be changed because of the insertion of Section 8
(d) in the Act. Nor would we change them today
The majority also seeks to rely upon the rationale used in the North-
western Publishing and Mississippi Lime cases. In both those cases,
.the Board merely followed the agreement of the parties in determin-
ing the "usual and natural" period for conducting negotiations.
The Board did not fix this period for them, nor did it permit a change
in the period during the contract term. That is precisely what our
colleagues are permitting the Employer and the Intervenor to do in
this case. In the 1946 agreement, which was renewed for several
successive years, the contracting parties agreed upon what would be
a reasonable period for conducting new negotiations. They per-
mitted the contract to be renewed without changing this period for
several years after the effective date of the Labor Management Rela-
tions Act. As late as 1949, the last renewal year, the parties appear
to have been satisfied with the 30-day negotiating period they them-
=selves had provided. We would hold them to their contract.
Under established Board rules, the Petitioner filed its second pe-
tition in timely fashion. For this reason we agree with our colleagues
that the 1950 contract is not a bar to a present determination of rep-
resentatives.
22 Section 8 (d) provides :
The duties imposed upon employees , employers , and labor organizations by para-
graphs ( 2), (3) and (4) shall become inapplicable upon an intervening certifica-
tion of the Board, under which the labor organization or individual , which is a
party to the contract , has been superseded as or ceased to be the representative of the
employees subject to the provisions of Section 9 (a). . . .
CITIES SERVICE REFINING CORPORATION and OFFICE EMPLOYEES INTER-
NATIONAL UNION, LOCAL No. 87, PETITIONER. Case No. 15-RC-496.
June 27, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Schwartz, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
94 NLRB No. 217.